Johnson v. Travelers Ins. Co.
| Decision Date | 29 October 1973 |
| Docket Number | No. 53272,53272 |
| Citation | 284 So.2d 888 |
| Parties | David JOHNSON, Jr. v. The TRAVELERS INSURANCE CO. et al. |
| Court | Louisiana Supreme Court |
Warren J. Hebert, New Orleans, Robert R. Rainer, Baton Rouge, for plaintiff-applicant.
William A. Norfolk, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-respondents.
Plaintiff, David Johnson, Jr., brought this action to recover under the Louisiana Workmen's Compensation Act for personal injuries resulting in total and permanent disability.
The District Court rendered judgment in favor of the employer, Riddle Masonry Company, Inc. and its compensation carrier, Travelers Insurance Co., dismissing plaintiff's suit.
The Court of Appeal affirmed the lower court decision. 271 So.2d 559 (1973). We reverse.
Johnson, a 52-year-old bricklayer's helper, received a back injury in the course and scope of his employment on July 16, 1972. While attempting to slide a bale of bricks, weighing about 400 pounds, into position on a scaffold, he lost his footing, fell, and the bricks fell on top of him. The mishap was reported immediately to his superior, who authorized him to secure medical aid.
The evidence establishes that, prior to the accident, Johnson had been a steady worker, with no history of back pain.
Plaintiff saw Dr. Harry Morris, a general practitioner, on the date of the accident. Dr. Morris' report, accepted in lieu of his testimony, indicates appellant complained of sacroiliac pain and numbness of the right leg. Examination disclosed mild pain to touch in the right sacroiliac area. Straight leg raising tests proved negative. X-rays disclosed hypertrophic degenerative changes throughout the lumbar spine and congenital anomaly of the transverse process of the first lumbar vertebra. Dr. Morris prescribed pain relievers and bed rest. He diagnosed plaintiff's condition as sacroiliac sprain. The following day Johnson was again seen by Dr. Morris who considered him improved, despite complaints of pain in the back and right leg. On July 20, 1970, Dr. Morris saw plaintiff and found no limitation of motion. Johnson was last seen by Dr. Morris on July 23, 1970, and which time he reported feeling better, but stated he felt a burning sensation in the back upon standing and neck pain when he stood erect too long. Dr. Morris again found no limitation of motion. The physician was of the opinion that plaintiff should make a complete recovery with no residual disability.
On August 13 and 20, 1970, Johnson consulted Dr. L. P. Laville, Jr., who diagnosed his condition as mild residual lumbo-sacral strain. Dr. Laville initially prescribed diathermy, pain relievers, and rest. He felt that plaintiff was then able to perform light duty, and a week would be able to return to his normal heavy labor. On plaintiff's second visit, Dr. Laville considered him fully recovered and able to resume work on August 24, 1970.
Plaintiff was seen by Dr. Charles B. Cracraft, an orthopedic surgeon, on September 4, 1970. Dr. Cracraft's report indicates he found minimal paravertebral muscle spasm and some restriction of flexion motions of the back. He also noted that all other motions were complete, but caused some pain upon extremes. X-rays revealed no fractures, dislocations or evidence of spondylolisthesis. He did note moderate hypertrophic lipping of the lumbar vertebral bodies and considerable narrowing of the lumbo-sacral disc space posteriorly. His diagnosis was (1) strain and contusion of the low back; (2) hypertrophic arthritic changes of the lumbar spine, and (3) degenerative disc disease at the lumbo-sacral level. Physical therapy was prescribed for a week, and the patient advised to return September 11, 1970. Plaintiff returned, reported feeling better, but stated that he had attempted to do some yard work and had experienced back pain. Dr. Cracraft found all motions complete and an absence of muscle spasm. Plaintiff was advised to continue physical thereapy treatments and to return in a week. On September 18, 1970, Dr. Cracraft gave plaintiff a note stating plaintiff could resume work September 21, 1970.
On October 2, 1970, Johnson returned to Dr. Cracraft. He stated he had gone to work helping his brother-in-law harvest potatoes, and that upon stooping down, he could not straighten up. On this occasion, Dr. Cracraft found considerable muscle spasm and restriction of all motions. Thereafter, Dr. Cracraft saw plaintiff on October 9, 16 and 23, and November 9, 1970. On each visit plaintiff was found to be improving. On November 9, 1970, Dr. Cracraft advised him to resume work the following day. Plaintiff returned to Dr. Cracraft on December 4, 1970, reporting that he had resumed work as a bricklayer's helper for about a day and a half and had again experienced back pain. Dr. Cracraft found him disabled. Plaintiff was also seen by Dr. Cracraft on December 11, 1970, and advised not to resume heavy work. Plaintiff was seen by Dr. Cracraft for the last time on January 1, 1971, who found him disabled for heavy work.
Johnson was seen by Dr. Allen Jackson, orthopedic specialist, on March 1, 1971. His findings were essentially the same as Dr. Cracraft's. Dr. Jackson found plaintiff disabled to do heavy work.
The sole issue is whether the accident on July 16, 1970 caused disability of a total and permanent nature.
The defendants concede that there was an accident within the purview of the Louisiana Workmen's Compensation Act; however, they assert that this accident resulted in temporary disability only. It is defendants' position that disability extended from July 17 to November 5, 1970, for which payment has been made.
The plaintiff has the burden of proof in a workmen's compensation case. Burk v. Security Ins. Co. of New Haven, 248 La. 177, 177 So.2d 278 (1965); Adams v. Home Indemnity Co., La.App., 180 So.2d 51, writ ref. 248 La. 697, 181 So.2d 398 (1965); Wells v. Kaiser Aluminum and Chemical Corp., La.App., 185 So.2d 37 (1966). It is incumbent upon the plaintiff to establish the causal relationship between the accident and his disability by a preponderance...
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